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48 Notre Dame Law. 881 (1972-1973)
Limitation Periods on Personal Injury Claims

handle is hein.journals/tndl48 and id is 883 raw text is: LIMITATION PERIODS ON PERSONAL INJURY CLAIMS Jeremy S. Williams* Most jurisdictions restrict the time within which an action for damages may be brought to compensate a plaintiff for a personal injury.' Furthermore, it is noteworthy that limitation periods applicable to personal injury claims tend to be relatively short.2 Often the time allotted for the bringing of such an action is only two or three years. There are several policy reasons for retention of a limitation period pre- venting actions from being brought to recover damages for personal injuries except within the specified period: (1) It is generally thought improper to subject a person indefinitely to the possibility of being found liable to pay damages. It is often thought that a stale claim may have more injustice than justice in it. However, where a plaintiff is aware that he has a claim he may wish to wait as long as he possibly can so that all the items in his claim may be accurately evaluated and so that he may claim the full amount of damages under each head. (2) Most actions for personal injuries depend to a great extent upon the testimony of witnesses, and the recollection of such witnesses inevitably becomes less credible. After a lapse of time witnesses may exhibit one of two tendencies. They may either admit that their memory has faded or they may become more assertive as to a sequence of events which may or may not correspond with the truth. (3) Other evidence tends to disappear. Since the burden of proof on a balance of probabilities is, in a civil action, upon the plaintiff this disappearance of evidence may render him less easily able to succeed. * Professor of Law, Indiana University, Indianapolis Law School; LL.B., 1964, University of Sheffield; B.C.L., 1966, University of Oxford; LL.M., 1969, University of Sheffield. 1 All common law and civil law systems have such periods. The problems are factual ones presented in all societies. See generally J. ANGELL, LiTirrATIONS OF ACTIONS AT LAW 503 (6th ed. 1876); McLaren, The Impact of Limitation Periods on Actionability in Negli- gence 7 ALBERTA L. REv. 247 (1968). 2 The fact that the limitation periods for personal injury claims are short causes two problems to be raised. The first is that the limitation period may have run before the cause of action is discovered. This is the problem raised in Note, Malpractice and the Statute of Limitations 32 IND. L.J. 528 (1957). The second is that the plaintiff may attempt to cor- rect errors, such as the substitution of the proper defendant in the action, after the time has elapsed. In Ryser v. Gatchel, 278 N.Fi.2d 320 (Ind. App. 1972) the Indiana Court of Appeals allowed a summary judgment to be upset where the plaintiff was apparently inten- tionally misled as to who was the appropriate defendant in the action. Hoffman, C. J., in delivering the opinion of the court, said: This case has necessitated that this court draw a very fine line. On one hand, we must be extremely careful to insure that the summary judgment proceeding has not erroneously deprived the plaintiff of her day in court. On the other hand, we must be equally as careful not to prejudice defendant's case by depriving him of his right to the affirmative defense accorded by statute, ie., the running of the statute of limitations. 278 N.E.2d at 324.

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